I moan constantly about Congress’s refusal to do its job and make policy decisions about trademark and copyright via legislation that reflect the technological and economic realities of our time, instead leaving that job to judges — some of whom are up to it, many of whom are not, but none of whom are paid to do it.

And that’s just intellectual property. How about liberty, and the pursuit of happiness? Scott Greenfield nails this point, as he does with alarming regularity, in this post. He shows how bad — really, really, awfully bad — judicial analogizing (undoubtedly propelled in no small part in the particular event by equally bad judicial rationalizing) often begets a generation of really bad law. The result has been the thoughtless cession of a stunningly significant piece of constitutional real estate — privacy — as applied to the digital world which, if you haven’t noticed, is mainly where our privacy issues reside these days. Excerpt:

When it comes to technology, the question of which precedent to apply is based largely on which analogy a judge prefers, which in turn is based on either a judge’s grasp of technology, which is not always the same as, say, more attuned users, or the analogy that produces the desired result.

At Volokh Conspiracy, Orin Kerr has dredged up an old Kentucky opinion from 2003, United State v. Morgan, denying suppression of child porn. Yes, child porn was there even back then. Morgan tried to eliminate the images from his computer, using a program called “Internet Eraser.” His wife, who suspected what he was up to, used a program of her own that took a screen shot every 10 seconds. She wasn’t pleased with what she learned, and ratted her husband out.

While Morgan’s wife turned over his computer, and as a common user, consented to the search, the court added this:

By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.

Yes, remember the old abandoned trash approach of Greenwood, except that the object there was actually abandoned trash? Are deleted computer files the same? Obviously not, but the problem is the resort to analogy to pigeonhole technology.

Whenever these issues arise, the geeks want to argue technical jargon while the government wants to pull out analogies involving horses and buggies. The reaction is often an approach that suggests that technology has killed any expectation of privacy regardless of who is engaged in the debate. . .

Tech changed. It changes constantly. Because of this, the courts can take the position that precedent can’t keep pace, that old analysis can’t be adequately applied, and that new changes in technology change everything. In other words, there is a conceptual edge to stop our sliding down the slippery slope.

Or we can just throw privacy out with the deleted computer files. But we didn’t have both in 2003, and if nothing changes, we will never have privacy in the age of technology again.

Unfortunately, if anything the legal trend — legislatively, judicially and administratively — is mostly in the other direction, for which we can thank the 9/11 attacks. Before then, one could argue, at least, that the consumer of child pornography was a disgusting creep and entitled to incarceration, but that he was not necessarily, as a consumer, such a social menace that securing his punishment was worth any cost in terms of privacy or liberty. It was, per the above, already a losing argument, but it was still an argument.

But when the Jihadis walked right through “law enforcement” and blew up downtown that bright fall day, they blew up much of what the remained debatable in the debate about privacy and technology — or, at least, so it seemed, until a year ago, when the 11th Circuit issued an important ruling in In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, summarized here by Joel Hruska:

[A] John Doe . . . was compelled to testify before a grand jury in exchange for immunity from prosecution. Doe was ordered to decrypt the contents of his laptop as part of that testimony, but was told that his immunity would not extend to the derivative use of such material as evidence against him. Doe refused to decrypt the TrueCrypt-locked drives, claiming that to do so would violate his Fifth Amendment right against self-incrimination.

The 11th Circuit’s ruling reverses the lower court’s decision to hold Doe in contempt and affirms that forcing him to decrypt the drives would be unlawful. It also states that the district court erred in limiting the immunity it granted Doe to only apply to grand jury testimony and not the derivative use of the evidence in question. The ruling on misapplied immunity means that the 11th Circuit could’ve punted on the Fifth Amendment issue, but the court opted not to do so.

The applicability of the Fifth Amendment rests on the question of what the government knew and how it knew it. Federal prosecutors admitted at trial that while the amount of storage encrypted exceeded 5TB, there was no way to determine what data was on the hard drive — indeed, if there was any data whatsoever. Plaintiffs were reduced to holding up numerical printouts of encryption code that they said “represented” the data they wanted, but were forced to admit that there was no way to differentiate what might be illegal material vs. legal.

The question at hand is whether or not decrypting the contents of a laptop drive is testimony or simply the transfer of existent information. The court acknowledges that the drive’s files are not testimony of themselves, but writes “What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact.” (emphasis original)

So maybe there’s something recyclable in that garbage — if I may be permitted an analogy.

Unfortunately, however, the spectacle of judges putting brakes on federal prosecutors’ overreaching and the virtual rubber-stamping of too many District Courts is pretty rare. The outcome in the 11th Circuit’s “John Doe” case should not have required a Circuit Court’s attention. On the other hand, imagine just how “terrorist-friendly” (and “porn-friendly”) your local Congressman would be if he sponsored a bill to make it clear to actually address computer-related privacy — not by analogy, but passing an actual law?

On-topic-wise, what if Congress would amend the Lanham Act to acknowledge that it’s the 21st century and that, for example, there is no such thing as “initial interest confusion,” thereby eliminating the ability of brand “stakeholders” to destroy small businesses who have the temerity to offer consumers the genuine goods they want for an “unauthorized” price on the Internet. What if Congress would pass a law that made it clear that, unlike what certain judges think, a “prevailing party” under the Copyright Act can be a defendant who successfully staves off a meritless copyright infringement claim?

The implications of IP law aren’t as dramatic as the possibility, to quote Scott’s post, that whether or not a 65-year-old judge thinks that data deletion is like putting out the trash “will determine whether you spend a lengthy period of time as a guest of the federal government at one of their lovely vacation spots.” But it sure can matter when judges, by analogizing where analogy is impossible, or who don’t understand technology or who even, under the best of circumstances, have no idea how to align precedents that suffer from either or both limitations, destroy a family’s livelihood or bankrupt an individual victimized by the use of intellectual property litigation as a legalized unfair competition.

You would think that, compared to protecting pornographers, terrorists and all the other bad guys used to keep Congress far away from the protection of digital privacy, these would be chip shots. But you’d be wrong — because you will have forgotten that our full-time, career-professional Congress doesn’t work for you at all. Recycle that.

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Author:Ron Coleman

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. This blog is about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

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